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laide discovery shaft, it is important to consider whether it existed in mass and position, or, in other words, in the forın of a vein or lode; or, on the other land, in a broken and fragmentary condition, intermingled with the slide and debris on the surface of the mountain. For it rests with the plaintiff to show that ore was found in the discovery shaft, and also that the same body, vein or lode extends to the ground in controversy. Of course, if ore was found in the discovery shaft, and the ore so found was broken and fragmentary, it can not be said that a body of ore--a vein or lode—was found in that shaft which extends to the ground in dispute.

So that if you find that no ore was discovered in the discovery shaft of the Adelaide claim, or if ore was found in that shaft, and it was broken and fragmentary, your verdict will be for the defendant.

And in this view (that is, assuming the facts to be as stated,) the circumstance that plaintiff's grantors afterward developed the body of ore in controversy higher up the mountain side, will not affect the result. For a location rests on what may be found in the discovery shaft. And if nothing is found there, or if what is found there does not extend beyond the limits of the shaft, the discovery of a body of ore elsewhere in the claim will not avail.

But if a vein or lode was found in the discovery shaft of the Adelaide claim, and it extends throughout the ground in controversy, the plaintiff may prevail.

Something has been said as to whether the locators complied with the other provisions of the statute, relating to posting notice of the discovery on the claim, staking the boundaries, all of which must be shown in evidence, to constitute a valid location.

If you find these things to be proved, and that a vein or lode was found in the discovery shaft, the question reinains whether such vein or lode extends to the ground in controversy. Upon the evidence liere, it may come to the point whether the lode of ore found in the several shafts on the hill was also found in the discovery shaft of the Adelaide claim. Nevertheless, if you believe from the evidence that a vein or lode was found in the discovery shaft, and that it is not the same as the vein or veins found in the shafts on the same claim, higher up the hill, but that it extends thru.ghout the claim, the plaintiff may prevail.

This being shown, although defendant's location may appear to you to be along the line of the top, apex or outcrop of the vein, it can not prevail against a senior location on the dip of the lode. That plaintiff's location is of earlier date than either of defendants, may be assumed npon two grounds: First, the date is shown as August, 1876, and, in the absence of evidence, we can not presume that the others are of earlier date. Second, in the patent put in evidence by defendant, the Adelaide surface ground is excepted from the grant. This may be prima facie evidence that the Adelaide claim is of older date than the others; but it is not evidence of any thing more.

In taking the patents in that form, there was no recogni. tion of the plaintiff's right, or the validity of the Adelaide claim; nor is the defendant in any way precluded thereby from contesting that claim.

The exception in the patent to the Pine claim to which reference has been made by counsel, does not in any way relate to the matters in controversy here. It should not have any weight whatever with you. The matters in issue are as herein stated, and you will determine them according to the rules now given you, and by the preponderance of evidence. The burden is on the plaintiff to establish every material fact, as herein before declared.

The jury returned a verdict for plaintiff.

1. Title to lode discovered in tunnel: Corning Co. v. Pell, 4 Colo. 507; Post TUNNEL.

2. Denouncement, under Mexican law, is the formal declaration of discovery: U. S. v. Castillero, 2 Black (U. S.), 286.

3. Discovery of lode after location, validates claim: North Noonday Co. v. Orient Co., 6 Saw. 299; Post Location.

4. Discovery not valid where made within lines of prior subsisting claim: Armstrong v. Lower, 6 Colo. 393; Little Pittsburg Co. v. Amie Co., 17 Fed. R. 57.

5. Time allowed to perfect discovery: Patterson V. Hitchcock, 5 M. R.

PACKER ET AL. v. HEATON ET AL.

(9 California, 569. Supreme Court, 1838.) Labor upon claim by relation and intendment. The regulations of a

mining district required every claimant to work his claim two days in every ten. Held, that efforts to procure machinery, without which it was impossible to work the mine because of the inflow of water, should be justly considered as work done upon the claim, by relation and in

tendment. 2 Construction of drain. Work done upon adjoining ground in the con

struction of a drain for the mine, is work done upon the claim within

the true meaning of a rule requiring labor. Interest of witness. One of a company of miners suing for possession

of a claim, who has sold his interest before suit, but after the location of the claim sought to be recovered, is interested in the damages claimed

and is not a competent witness. Mistake of counsel no ground for new trial. The mistake of counsel as

to the competency of a witness is no ground for granting a motion for new trial.

Appeal from the District Court of the Fourteenth Judicial District, County of Sierra.

A statement of the facts appears in the opinion of the court.
DUNN, SMITH & GALLOWAY, for appellants.
MOCONNELL & Niles, for respondents.

BURNETT, J., delivered the opinion of the court, Terry, C. J., concurring.

This was an action to recover the possession of a mining claim, and damages for the detention thereof. The defendants had judgment in the court below, and the plaintiffs appealed.

The main question in this case has relation to what constitutes a forfeiture or abandonment of a clain under the regulations of that particular locality. It appears that in October, 1854, certain rules and regulations were adopted at a meeting of the miners at that point, the fifth of which is as follows:

See Jackson v. Roby, 4 Colo. L. R. 353, U. S. Sup. Court, 1883; McGarrity v. Byington, 2 M. R. 311.

2 Bradley v. Lee, 4 M. R. 470; St. Louis Co. v. Kemp, 104 U. S. 636; Post PATENT.

“All claimants or companies shall work, or cause to be worked, his or their claims at least two days in every ten from the first day of May to the first day of November.”

It appears that the ground in dispute was located by defendants in August, 1854, and a large amount of work done during that year, in the sinking of shafts to reach the deposits below. But from the great depth of the diggings, and the inflow of water into the shafts, it was found impossible to work the mine successfully without the aid of machinery propelled by steam. The last work upon the premises by defendants was done about the 4th of July, 1855. On the 13th of August, 1855, the plaintiff's located the claim. But between the 4th of July and the 20th of August, when the defendants re-commenced work upon the ground in dispute, they were engaged in efforts to procure the machinery necessary to prosecute their labors. At the request of the plaintiffs, the court instructed the jury, that, though the defendants were first to locate the claim, yet, if they subsequently abandoned it, and the same was located by the plaintiffs while it was so abandoned, and the plaintiffs had complied with all the rules, regulations and customs of the locality, up to the time of bringing the suit, then the plaintiffs were entitled to recover. The court refused to instruct the jury, at the request of plaintiffs, that the unsuccessful efforts of defendants to procure machinery could not avail them as an excuse for not working upon the claim as required by the rules; but, at the request of defendants' counsel, instructed them that, if the defendants were the prior possessors of the claim, and, at the time the plaintiffs located the same, were engaged in efforts to procure the necessary machinery, and did procure the same within a reasonable time, then the defendants were entitled to hold the claim against the plaintiff's.

The question as to the validity of this mining rule does not necessarily arise in this case, and we therefore express no opinion in relation to it. The instruction given by the court at the request of the defendants, though not within the strict letter of the rule, is yet within its true spirit and intent. The efforts to procure the machinery, with the bona fide intent to work the claim, may be justly considered as work done npon, the claim, by relation and intendment. It seems that the plaintiff's were placed, substantially, in the same position with

а

respect to this point. They had done no work within the actual limits of the claim, but had worked upon adjoining ground in constructing a drain. The court very properly instructed the jury that this work was done upon the claim within the true meaning of the rule. The rule did not require either party to do a vain and idle thing. The owners of claims are not required to waste their labor in doing that which can lead to no practical result. It seems that one company expended their labor in procuring machinery, while the other was engaged in constructing a drain; that the work in both cases was not done upon the clairn, strictly speaking; but that the end intended to be accomplished was the same, and the reasonable result the same in both cases. Both parties intended to drain the claiin; and the only difference was, they used different means to attain the same end.

The court, at the request of the defendants, instructed the jnry that, if the defendants were in the possession of the mining ground in dispute prior to the location of plaintiffs, and had not disposed of or abandoned the same, then they must find for the defendants.

The counsel for the plaintiffs insist that this instruction was erroneons, as it excluded the idea that the defendants could have forfeited their right to the claim.

It is unnecessary to inquire and decide whether the owner of a mining claim can forfeit the same by a failure to work upon it within ten days, as required by the rule. There was no error in giving this instruction, under the circumstances. The plaintiff's, in the first and second instructions asked by them, said nothing as to a forfeiture of defendants' right, but confined their instructions to the case of abandonment. It is true that in the fifth, sixth and seventh they referred to the specific facts as not constituting an excuse for the failure to work within the time limited. These latter instructions were properly refused, and the plaintiffs had not relied upon any other acts alleged to constitute a forfeiture. The result was, that the plaintiff's rested the case upon the ground of abandonment, and also upon certain facts not constituting a forfeiture. There was nothing in the facts proven tending to show a forfuiture. The giving of this instruction could do the plaintiffs no harm. The objection to the seventh instruction, given at

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